Marijuana smoking motorists beware, ConCourt ruling under fire

“In theory, any person caught with even traces of marijuana in their system whilst driving can currently be arrested and/or prosecuted,” says ALCO-safe director, Rhys Evans.



While the Constitutional Court of South Africa has decriminalised the private personal use of marijuana, drivers under the influence of dagga could face stiff punishment.

This is according to a report by The Citizen, which cites the firing of 300 drivers after they tested positive for marijuana. The Johannesburg based company, which specialises in staffing and transport logistics, has argued that operating a vehicle under the influence of marijuana is as serious as drunk driving.

Fired drivers set to challenge dismissals

Arnoux Mare, managing director of Innovative Staffing Solutions, confirmed that a number of staff members had been axed for transgressions relating to inebriated driving which was in direct violation to their work code and conduct.

Trade Unions have argued that testing methods undertaken by the company may be flawed.  Zanele Sabela, spokesperson for the South African Transport and Allied Workers Union (Satawu), said:

“We advise the 300 drivers to initiate unfair dismissal cases against Innovative Staffing Solutions.”

Mare stands by his decision to fire employees who test positive for marijuana, arguing that intoxicated drivers, whether they are drunk or high, pose a serious threat to other road users.

Complexities of the CounCourt’s ruling

On Tuesday 18 September, Deputy Chief Justice Raymond Zondo handed down a landmark ruling regarding the use of marijuana in South Africa. The Constitutional Court made it legal for adults to consume and cultivate cannabis within the privacy of their own homes.

Yet key questions regarding regulations, within the context of decriminalization, still persist. Judge Zondo has given parliament 24 months to update legislation relating to marijuana use and cultivation. But what happens during that 2-year time frame?

One contentious issue which has been brought up in the wake of this ruling is that of driving while intoxicated. The rules regarding drunk driving are clear; if a motorist operates a vehicle while above the legal limit they are breaking the law and will be arrested – if apprehended and tested, either at a roadblock or during a random stop and search.

While it’s proven that the consumption of marijuana has the ability to impair senses, it’s much harder for law enforcement to actively police ‘dagga driving’. This is a huge concern for a country with shockingly high levels of road fatalities, mostly attributed to speeding and drunk driving.

Rhys Evans, director at ALCO-Safe, a company which specialises in the field of narcotics analysis, explained the complications, saying:

“As with alcohol consumption, use of marijuana leads to intoxication. However, unlike alcohol, testing for marijuana intoxication is a lot more complex than simply doing a breathalyser.

Laws and limits exist for driving under the influence of alcohol but, as Tetrahydrocannabinol (THC) – the principal psychoactive constituent of marijuana – remains in a user’s system for far longer than alcohol does, it makes it tricky to establish limits and laws around marijuana use.

In theory, any person caught with even traces of marijuana in their system whilst driving can currently be arrested and/or prosecuted.

But because it can remain in a person’s bloodstream for hours to days after use, a person who tests positive for marijuana isn’t necessarily intoxicated. At present, no limit has been established to determine how much THC needs to be present in the bloodstream for a person to be considered intoxicated.”

Decriminalised marijuana use set for a challenge

The complexities mentioned above relate directly to the case of Innovative Staffing Solutions. The Trade Union representing the fired drivers will surely point out that marijuana has the ability to stay in a user’s system for longer periods of time.

This does not necessarily mean that the drivers who tested positive were operating vehicles under the influence – or at least, it would be extremely hard to prove, depending on the testing methods implemented.

Still, the company does have a point, as explained by Mare:

“A trucker driving under the influence of cannabis can be likened to a noncoherent person barrelling a 60-ton missile down the road at 80 to 100km/h. If he or she loses control of the vehicle, innocent people are likely to lose their lives and infrastructure could be seriously damaged.

We do not take dismissals lightly, but we cannot accept behaviour that could place people’s lives in danger or our business at risk.”